Chattisgarh High Court
Anil @ Swami Jatav vs State Of Chhattisgarh on 30 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 125 of 2020
• Anil @ Swami Jatav S/o Mangu Jatav Aged About 28 Years R/o Village-
Haldaur, Police Station- Haldaur, District- Bijnaur, (Uttar Pradesh),
Present Address- Mohgaon, Police Station- Pandatarai, District-
Kabirdham, CG
---- Appellant
Versus
• State Of Chhattisgarh Through- Station House Officer, Police Station-
Pandatarai, District- Kabirdham, CG
---- Respondent
For appellant : Mr. Dharmesh Shrivastava, Adv.
For Respondent/State : Mr. Devesh Chandra Verma, Govt. Adv.
Hon'ble Mr. Justice N.K. Chandravanshi
Oral Judgment
30/11/2022
1. This appeal has been preferred against the judgment of conviction and
order of sentence dated 28-11-2019 passed by the Special Judge, (Protection
of Children from Sexual Offences Act, 2012 (in short, hereinafter referred to as
'POCSO Act'), FTC, Kabirdham (CG) in Special Sessions Case No. 10/2019
whereby the appellant has been convicted and sentenced as under :-
Sr. Offence u/S. Sentence Fine sentence Default
No. stipulation
1. 363, IPC 3 years RI Rs. 100/- 1 month RI
2. 354, IPC 1 year RI Rs. 100/- 1 month RI
3. 10, POCSO Act 5 years RI Rs. 100/- 1 month RI
All jail sentences have been directed to run concurrently.
2. As per prosecution case, on 6-1-2019 at about 17.30 hour, victim girl
aged about 7 years was playing in front of her house along with other children.
At that time, appellant called her and took her to agricultural field behind her
house, laid her on the ground and putt off his trouser. At that time, the victim
girl raised alarm/ shouted, hearing her shouting, her mother P.W. 5 went there
and assaulted the appellant by means of wooden club twice. Thereafter,
appellant fled from the spot. FIR Ex. P-2 was lodged on the same day at 21.05
hour by father (P.W. 1) of the victim (P.W. 2). During investigation, statement of
witnesses were recorded, spot map Ex. P-3 and Ex. P-4 were prepared.
Admission and Discharge register of the victim vide Ex. P-6 and Ex. P-7-C
was seized. After investigation, charge sheet was filed against the appellant
before learned trial Court.
3. Charges under Section 363 and 354 of the IPC and Section 10 of
POCSO Act were framed. The appellant abjured the guilt. To bring home the
guilt, prosecution examined as many as 9 witnesses and exhibited 12
documents. Statement of accused/appellant under Section 313 of the Cr.P.C.
was recorded, wherein he stated that since he did not give Rs. 1 lakh which
was sought as loan by father of the victim, therefore, he has been falsely
implicated in this case. Appellant has not examined any witness in his defence.
After hearing both the sides, learned trial Court vide impugned judgment,
convicted and sentenced the appellant as mentioned in para 1 of this judgment.
Hence, this appeal.
4. Learned counsel for the appellant would submit that appellant has been
falsely implicated in this case, as the victim girl has herself stated that earlier
she ( Prosecutrix P.W. 2) and her mother (P.W. 5) did not know the appellant
and at the time of incident, there was darkness. It is further submitted that
learned trial Court has convicted the appellant only on the basis of evidence of
interested witnesses i.e. victim girl (P.W. 2) and her mother (P.W. 5). There is
no independent witness to prove the case of prosecution. It is further submitted
that it is not a case punishable under Section 10 of the POCSO Act, as no
sexual act is committed by the accused, hence assuming the facts as projected
by the prosecution, to be true, at the most, it could be a case of only under
Section 354 of the IPC. Hence the impugned judgment is liable to be set aside
or it may be suitably modified.
5. On the other hand, learned counsel for the State supports the impugned
judgment.
6. Heard learned counsel for the parties and perused the material available
on record.
7. So far age of the victim is concerned, the trial Court has noted the
apparent age of the victim in deposition sheet as 7 years. Father (P.W. 1) of
the victim and her mother (P.W. 5) have stated that age of their victim daughter
was 7 years, which is well supported by Admission and Discharge register (Ex.
P-7-C), which has been proved by Dulesh Kumar Chandrakar (P.W. 4) who was
teacher in Shriram Public School, Rabeli, Distt. Kabeerdham, in which victim girl
studied in the year 2019. In Admission and Discharge register of the school Ex.
P-7-C, date of birth of victim has been mentioned as 22-6-2011 and date of
incident is 6-1-2019. Thus, as per school record also, at the time of incident,
age of victim girl was found to be 7 years, 6 months and 15 days. Thus it is
found proved that at the time of incident the girl was aged less than 12 years.
8. P.W. 1 is father of the victim girl, whom mother of victim told about the
incident and thereafter he made written complaint Ex. P-1, on the basis of
which, FIR Ex. P-2 was registered, which has also been proved by the
Investigating Officer Vyas Singh Parmar (P.W. 9).
9. P.W. 2 is victim/prosecutrix, who has stated in her deposition that at
about 5 pm when she was going to play along with her younger sister, at that
time, appellant called her, abducted her and took her behind her house. She
has further stated that, there the appellant laid her on the ground and when he
was putting off his trouser, she called her mother by screaming, then her mother
came there and assaulted the appellant by means of wooden club, thereafter
the appellant fled from the spot.
10. P.W. 5 is mother of the prosecutrix, who has supported statement of the
prosecutrix. She has also specifically stated in her deposition that when she
heard the voice of her victim daughter 'Mammi, Mammi', she went to the field
situated behind their house and saw that the appellant had put off his trouser
and laid the prosecutrix on the ground, then she assaulted the accused by
means of wooden club. Although both the witnesses have admitted in their
cross-examination that at the time of incident, there was darkness, but there is
nothing in their cross-examination that they could not have recognized the
appellant.
11. Nothing has been elicited in cross-examination of the victim girl (P.W. 2)
and her mother (P.W. 5) to disbelieve their statement which they have made in
their examination-in-chief, rather, FIR also was lodged on same day, that too,
within 4 hours of the incident. Hence, it is proved that the appellant had taken
the girl aged about 12 years with sexual intent, but there is no evidence on
record to show that appellant except laying her on the ground and putting off
his trouser, had committed any sexual act with the victim girl. Therefore, learned
trial Court has rightly convicted the appellant under Section 363 and 354 of the
IPC but since the appellant has not committed any sexual act with the
prosecutrix, hence, his conviction under Section 10 of the POCSO Act is not
found to be just and in accordance with law. Instead thereof, it has been proved
that the appellant had taken victim girl to the lonely agricultural place behind
the house of the victim, therefore, instead of Section 10 of the POCSO Act,
offence under Section 10 read with Section 18 of the POCSO Act is found
proved against the appellant.
12. In view of above discussion, the impugned judgment of conviction and
order of sentence passed by the trial Court is modified and the appellant is
convicted and sentenced as under :-
Sr. Offence u/S. Sentence Fine sentence Default
No. stipulation
1. S. 363, IPC 3 years RI Rs. 100/- 1 month RI
2. S. 354, IPC 1 year RI Rs. 100/- 1 month RI
3. S. 10 r/w S. 18 of 3 years and 6 Rs. 100/- 1 month RI
POCSO Act months RI
All the jail sentences are directed to run currently.
13. Since the appellant is said to be in jail since 7-1-2019 i.e. date of his
arrest, thus he has completed jail sentence awarded to him. Hence he be
released from jail forthwith in this case.
14. Other direction of the trial Court shall remain intact.
15. Accordingly, this criminal appeal is allowed in part with aforesaid
modification.
16. Record of the trial court be sent back forthwith along with a copy of this
judgment for compliance.
Sd/-
(N.K. Chandravanshi)
Judge
Pathak
